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Unitil may have to start paying some employees overtime after the utility giant lost its legal battle to get a labor lawsuit dismissed. 

U.S. Labor Secretary Marty Walsh is suing the Hampton-based utility, claiming that about 50 employees qualify for overtime pay. The company maintains those employees do not qualify for the extra wages.

Unitil won the first round of the fight, when United States District Court Judge Landya McCafferty dismissed the case via a summary judgment, siding with the power provider. The Biden administration’s Department of Labor notched a win last week when the First Circuit Court of Appeals in Boston overturned the dismissal and sent the case back to the district court.

The First Circuit’s order found that the employees in question — dispatchers and controllers — are often required to work more than 40 hours a week monitoring the gas and electric systems throughout the utility. Those employees are required to respond to automated alerts about system function and decide if those alerts require a crew to go out into the field or some other action.

Unitil has argued dispatchers who monitor the electric systems and controllers who monitor the gas systems perform primarily administrative and management functions and are therefore exempt from overtime regulations. The First Circuit Court found that argument lacking based on all of the tasks these employees perform in monitoring the systems.

“Unitil Service has not demonstrated that the dispatchers’ and controllers’ primary duty consists of work ‘directly related to the management or general business operations’ of its customers such that the employees fall under the (federal) overtime exemption,” the order states.

Unitil spokesman Alec O’Meara said the company is confident in its case as it heads back to the lower court.

“We expect the same result as previously from the district court,” O’Meara said.

The DOL brought the lawsuit in 2019 after investigating Unitil’s labor practices. The department’s investigation found the dispatchers were working 60- and 70-hour weeks, according to court records.

However, the company challenged that investigation in court claiming the DOL investigator Divya Sood used inadmissible hearsay in her investigative report. Sood interviewed six employees at Unitil; of the six, only one employee agreed to sign the statement Sood wrote detailing their conversation, according to court records. Sood’s submission uses anonymous statements that lack factual context, the company claims.

Sood’s report included statements from anonymous employees who said they do not have the discretion to make decisions and must defer to a supervisor or the company manual and set procedures. Not being able to take independent action would be appropriate for a non-managerial employee, according to the DOL’s argument.

Judge Landya McCafferty, who first heard the case in the Concord federal court, found the DOL’s argument lacking in this regard. Reporting to a supervisor or checking with a manual does not negate management duties, she wrote.

“Making an informed decision or recommendation about which set of actions to take depending on the present circumstances after consultation with training materials, supervisors, and personal experience is a paradigmatic exercise of discretion and independent judgment,” McCafferty wrote in the original order dismissing the case.

With the First Circuit’s ruling, the case heads back to McCafferty.

Unitil serves 200,000 customers in New Hampshire, Maine, and Massachusetts. Like other utilities in New Hampshire, the company gave customers a huge shock this year when it doubled the electric rates heading into the fall and winter heating seasons. Unitil’s rate went from 10 cents per kilowatt hour to 26 cents per kilowatt hour, sending customer bills soaring.

Granite Staters will get help this winter paying for heat and electricity after the legislature passed a $42 million plan to fund energy assistance for the middle class. 

“New Hampshire just delivered the largest energy relief package this state has ever seen, helping families in need this winter – using our state surplus funds,” said Gov. Chris Sununu as he signed a bill passed during the “Veto Day” session Thursday.

Democrats, on the other hand, used the news to repeat the debunked claim that Sununu is responsible for setting the state’s utility rates.

“The legislation the House just passed is critical to helping Granite Staters affected by Governor Sununu’s record electric rate hikes this fall,” said House Democratic Leader David E. Cote (D-Nashua).

Utility rates are set by the independent Public Utilities Commission.

Partisan rancor ahead of the midterm elections was not enough to prevent the legislature from enacting utility relief at a time when energy costs are soaring in New Hampshire and nationwide. The 12-month inflation rate is currently 15.8 percent for electricity and 33 percent for natural gas.

The new law uses surplus New Hampshire state budget funds to expand energy assistance this year, allowing middle-income New Hampshire residents to qualify for aid. Previously, the aid was only available to households earning up to 60 percent of the state median income. Lawmakers expanded eligibility to families earning up to 75 percent of the median, who can now apply for up to $450 in heating assistance and another $200 in electricity assistance.

Sununu originally wanted to use $60 million in surplus funding to send every home $100 in energy assistance, but that plan was rejected by lawmakers who came up with a more targeted proposal.

“That seems like a meaningless political gesture to me,” Rep. Steve Smith (R-Charlestown), said of Sununu’s initial plan.

Instead, lawmakers passed their proposal that will use $25 million on emergency fuel and electric assistance, $10 million on aid for electricity bills, and $7 million on an electric assistance program. The state’s surplus will be at around $120 million after the assistance is paid out.

Rep. Marjorie Smith (D-Durham) said the bill is not a long-term solution to high energy prices in New Hampshire, but it will help.

“Maybe it’s just a band-aid, but if you scrape your knee a band-aid helps,” she said.

House Speaker Sherman Packard (R-Londonderry) said not only will the bill help people pay for heating this winter, but it does so in a responsible manner.

“The fiscally responsible leadership of the General Court of New Hampshire has produced a budget surplus which allows us to create this one-time emergency relief package that will help offset rising fuel and electric costs this winter,” Packard said. “This bill provides direct relief to those in need and reduces the anticipated burden placed upon municipal welfare programs – a cost that would otherwise be passed along to property owners at the local level. We believe these surplus funds will alleviate some of the financial pressure for NH families who would otherwise not qualify for existing assistance programs. By coming together today, we chose New Hampshire citizens over party politics.

House Majority Leader Rep. Jason Osborne (R-Auburn) blamed President Joe Biden and members of New Hampshire’s federal delegation for making inflation worse.

“Due to no fault of their own, many Granite Staters who have not previously needed assistance may find themselves unable to pay their bills this winter and do not qualify for the federal assistance programs. We want to ensure those people have some help,” Osborne said.

New Hampshire Democrats, however, point the finger of blame for rising utility costs at Sununu.

“New Hampshire has become an outlier in New England with record rate increases because Gov. Sununu has consistently rejected efforts to increase energy efficiency and production of renewable energy,” Cote said. “Granite State families cannot afford the 50 percent increase that will hit them this fall, and this bill provides temporary relief for lower-income households that are ineligible for existing programs.”

In fact, New Hampshire currently has the second-lowest electricity rates in New England and historically had lower rates than Massachusetts.

The legislature also failed to override any of Sununu’s eight vetoes.

Already paying some of the highest energy costs in the country, New Hampshire ratepayers will soon be paying a lot more.

According to a filing with the Public Utilities Commission, Liberty Utilities is seeking approval for an increase in the default residential energy rate from 8.393 cents per kilowatt-hours to 22.223 cents per kilowatt-hours.

Donald Kreis, with New Hampshire’s Office of Consumer Advocate, said the net effect of the charge will be that Granite Staters who use Liberty can expect to pay nearly 50 percent more for electricity when the new rate goes into effect in August.

“That means a typical bill for a residential electric customer of Liberty Utilities will go up by nearly 47 percent from its current level,” Kreis said on Twitter.

Granite Staters already pay the seventh-highest residential electricity rates in the nation.

Liberty has about 43,000 electric customers in New Hampshire. Kreis said Eversource, New Hampshire’s main electric supplier, is expected to file for a similar rate increase before the PUC soon.

“To my knowledge, these huge default service prices are unprecedented since NH broke up its vertically integrated electric utilities more than 20 years ago,” he wrote on Twitter.

He said on Twitter the reason for the rate increases is the rising cost of natural gas, which electric supplies use to generate the power needed.

“In New England, we rely on natural gas for the majority of our electricity. Natural gas futures prices for the coming winter have hit $30 per mmBTU. Wholesale electric suppliers have priced those natural gas increases into their bids,” he wrote.

Reached Wednesday, Kreis said New Hampshire doe not have a robust natural gas market for homeowners, the state uses a lot of natural gas to fuel power plants, like the Granite Ridge power facility in Londonderry. 

Unitil, one of the state’s two other electric utilities, has rates currently at around 10.3 cents per kilowatt-hour and is on a different rate schedule than the other two companies. New Hampshire Electric Cooperative, the second-largest utility in the state, expects to adjust its power supply rate later this summer.

“It’s safe to say that we’re seeing the same dynamics playing out in the New England electric wholesale market. Costs for summer supply are up dramatically from last year, driven primarily by huge increases in the price of natural gas, which is used to generate about half of the power in New England,” said NHEC Communications Administrator Seth Wheeler.

The rate increases coming from Liberty and Eversource far outpace predictions from the U.S. Energy Information Administration. The winter electricity forecast saw a price rise in New England closer to 16 percent, not 47 percent.

“We expect the summer increases in retail residential electricity prices will range from an increase of 2.4 percent in the West South-Central region to a 16.1 percent increase in New England,” the EIA forecast states.

Kreis said utilities buy power from suppliers in six-month increments, and the rate increases reflect the increased prices they are paying for power under the new six-month contracts, which will start in August. There won’t be another chance to change the rates until next year, meaning prices will remain high until 2023.

New Hampshire’s elected officials have taken note.

On Wednesday, Gov. Chris Sununu and Department of Energy Commissioner Jared Chicoine announced that, for the first time ever, the state plans to use  Low Income Home Energy Assistance Program (LIHEAP) funding to help struggling households pay for summer electricity costs. The funding will be routed through the New Hampshire Fuel Assistance Program for pre-qualified, low-income households.

“We are allocating $7.5 million in funds to provide low-income families with assistance to help cool their homes this summer,” said Governor Chris Sununu. “As a result of unprecedented Washington spending that has unleashed record inflation, uncertainty in the energy market following President Biden’s anti-domestic energy policies, and the ongoing conflict in Ukraine, energy prices are skyrocketing across the country. While there is not much that states can do to rebuff federal inaction, we are doing what we can at the state level to ease the burden on low-income families.”

Details of the plan, including the exact amount of funding available per family, are still being developed.

“The Department of Energy is working diligently with stakeholders to provide summer electric bill assistance to currently-eligible LIHEAP customers,” said Department of Energy Commissioner Jared Chicoine. “We are hopeful that this assistance will help provide some relief to consumers in these challenging times.”

Kreis said in the short term consumers should shop around for competitive electric suppliers and lobby their municipalities to enter into power aggregation deals to lower the costs. They can also apply for the state’s energy efficiency programs.

New Hampshire energy consumers are looking at a tough winter ahead, too. Home heating oil is selling for close to $6 a gallon, up from about $4.50 a gallon average this past winter, and $3 a gallon from the prior season. Relief is a long way off, as the EIA expects the 2023 winter season to see heating oil back down to under $4 a gallon.

Craig Stevens, a spokesman with the energy and business coalition, Grow America’s Infrastructure Now, said Democratic environmental and energy policies, like restricting domestic energy production, have pushed prices higher.

“The rise in electricity prices is, unfortunately, much too predictable considering the energy policies of the past two Democratic administrations promised – and have since delivered – Americans. Between Presidents Obama and Biden, they have forced the shuttering of power plants across the country, made the siting and construction of transmission lines virtually impossible, stopped pipeline expansion, and closed off domestic energy production,” Stevens said.

“We need more than vapid rhetoric, empty promises, and finger-pointing; we need a comprehensive – all of the above – energy policy that recognizes our current energy needs and the growing energy needs of our increasingly electrified economy.”

With prices likely to remain high through to next year, Kreis said New Hampshire ultimately needs to diversify how it generates power in order to avoid another year like 2022.